Author : Att. Önder Özden*

In the context of this article we aim to define open source software versus to proprietary software and clarify two of the most encountered misconceptions with respect to open source software i.e. its pecuniary qualification and whether or not the term is fallen within the scope of copyright regime.

Proprietary software has a closed source code of which only the person who has created it maintains exclusive control over it and can alter. By virtue of that, “source code” is the code in which computer programmers can manipulate to change how a piece of software works. As a rule, programmers who have access to a computer program’s source code can improve that program by adding features to it or fixing parts that do not always work correctly.

Only the original authors of proprietary software can legally duplicate, analyse, and modify that software. And in order to use proprietary software computer, users must agree that they will not do anything with the software contrary to explicit prior written consent of the software’s author. Microsoft Office and Adobe Photoshop are examples of proprietary software.

On the other hand, open source software is slightly different. Its author makes its source code available to others who would like to view that code, copy it, learn from it, alter it or share it. “….Early inventors built much of the Internet itself on open source technologies—like the Linux operating system and the Apache Web server application—anyone using the Internet today benefits from open source software…..”[1]

As they do with proprietary software, users must accept the terms of a license when they use open source software whereas the legal terms of open source licenses differ dramatically from those of proprietary licenses.

Open source licenses affect the way people can use, study, modify, and distribute software. In general, open source license grant computer user permission to use open source software for any purpose they wish. Some open source licenses -what some people call “copyleft” licenses of which we will be clarifying herein below- envisage that anyone who releases a modified open source program must also release its source code for that program as well.

Open source software has several key advantages of which the users benefit from:

  • It can be more secure than proprietary software because bugs are identified and fixed quickly.

  • Since it is in the public domain and constantly subject to updates, there is little chance it can become unavailable or quickly outmoded -an important plus for long-term projects-.

  • Its quality can be easily and greatly improved when its source code is passed around, tested, and fixed.

  • It offers a valuable learning opportunity for programmers. They can apply skills to the most popular programs available today.

Respectively, open source software licenses promote collaboration and sharing because they permit other people to make modifications to source code and incorporate those changes into their own projects. Popular open source softwares are;

  • Mozilla’s Firefox web browser

  • Thunderbird email client

  • PHP scripting language

  • Python programming language

  • Apache HTTP web server

Moreover, there is a huge misconception as regards the pecuniary qualification of an open source software. Open source -despite its openness- does not mean something which is free of charge.

“….Open source software programmers can charge money for the open source software they create or to which they contribute. But in some cases, because an open source license might require them to release their source code when they sell software to others, some programmers find that charging users money for software services and support (rather than for the software itself) is more lucrative. This way, their software remains free of charge, and they make money helping others install, use and troubleshoot it. While some open source software may be free of charge, skill in programming and troubleshooting open source software can be quite valuable…”[2]

As mentioned in the 1st page of this article open source software is being licensed like the proprietary software with a slight difference. Both softwares are adhered to copyright protection however disseminated and legitimized in practice under different conceptual and philosophical contexts.

A copyright is a legal right bestowed upon creators of original works to dictate how those works can or cannot be copied, modified and distributed by others. If someone uses or distributes an original work in a way that is contrary to what its creator allows -by amounting to an infringement-, the creator is entitled to seek legal remedies.

The main idea behind copyright is that creators restrict what others can or cannot do with their works and must grant individual permission to do otherwise.

Copyleft licenses exist within the legal structure of copyrights. Despite what the name implies, copyleft is not about abolishing copyrights. Rather, copyleft licenses are a subset of copyright licenses and the goal is to restore freedom to users.

In other words, “..Proprietary software developers use copyright to take away the users’ freedom; (free software developers[3])… use copyright to guarantee their freedom. That’s why we reverse the name, changing “copyright” into “copyleft.” Copyleft is a way of using the copyright on the program. It doesn’t mean abandoning the copyright; in fact, doing so would make copyleft impossible. The “left” in “copyleft” is not a reference to the verb “to leave”—only to the direction which is the mirror image of “right” [4]

The core concept of copyleft is that users should have the right to freely use, copy, modify and distribute works however they want, with one crucial clause: all derivative works must offer the same freedoms to users. Note that copyleft infringement is possible! Failing to abide by the rules of a given copyleft license (e.g. GNU General Public License[5]) is grounds for legal action, evidenced by when the Software Freedom Law Center (“SFLC”) won a lawsuit in 2010.[6]

In this sense, a copyleft license isn’t the same thing as a permissive license, which grants users the freedom to do anything they want. Copyleft licenses still impose some demands. The most notable aspect of copyleft licenses is that they require users to distribute derivative works under a license that offers the same rights as the original work.

In the event a lawyer releases a copyleft article for anyone to use. As a user, you’re entitled to download, alter and communicate that article to the public freely to whoever you want but you would also have to permit anyone else to modify and distribute your work as they wish. This is called a “share-alike” clause. Therefore, copyleft isn’t the same as a content to be exploited by the public without being subject to any restriction in view of its further communication and commercialisation i.e. in someone’s own restrictive license conditions.

Therefore, copyleft doesn’t just allow freedom; it requires the preservation of the freedom as a “must”. Such licenses ensure that copyleft freedoms remain even in derivative works.

“…To reiterate, a copyleft license is defined by two main aspects:

  • The freedom for users to modify and distribute derivative works

  • The “share-alike” clause that maintains freedom in derivative works

There’s nothing that requires copyleft works to be made freely available at no price. In other words, you might not be able to acquire a certain copyleft work without first paying for it. But once you do pay for it, you’re free to modify and distribute as long as you maintain the same copyleft freedoms in the derived work. Red Hat Enterprise Linux is a good practical example of this. The Linux kernel is licensed under the GNU General Public License (GPL), which is a copyleft license. Red Hat Enterprise Linux (RHEL) is a commercial operating system built on a modified Linux kernel. The desktop version of RHEL is sold for $49, but to abide by the GPL, the RHEL source code is included in the purchase. RHEL users are free to modify and redistribute the source code, which is how the free RHEL-clone operating system called CentOS came about. However, users aren’t allowed to resell RHEL itself because RHEL is protected by a trademark.”[7]

Accordingly, when we review the articles which have been written w.r.t. open source software and copyleft licenses we realize that open source software was created in retaliation for inadequacies and insecurities of proprietary software. Preservation of freedom for users was the core value of this stream which has gradually amounted to the transformation of the conventional mindset of the digital age despite all the oppositions of proprietary software owners whose market power was undeniably deterrent in those times. We may see the same transformation in automotive market where the combustion engine cars are being gradually replaced with electrical cars despite all the obstructions of oil industry.

Given the priorities and characteristics of open source and free software industries above, we also conclude that the reason why they have thrived on all the years in despite of all those obstructions and criticisms of the proprietary software industry, they have not deferred copyright protection but guaranteed it by adopting a brilliant mechanism so-called “copyleft” in which the authors of works made available to public are entitled to copyright under the terms of optional license agreements provided by organisations such as Creative Commons. By doing so open source software industry could achieve to balance the copyrights of authors and eligible interests of programmers while streamlining the dissemination of knowledge without endangering its progression.

On basis of these facts, it is now evident to us that it is sustainable on the one hand to renumerate and protect the rights conferred upon the work while on the other hand to contribute to the ecosystem by securing adequate freedom to develop the work in collaboration of all the stakeholders who respect author’s rights probably more than they are and will be respecting the rights of proprietary software owners.

[1] Co-founder of Ozden & Guclu Legal, Specialized in IP Law, –


[3] Open source applications are generally freely available – although there’s nothing stopping the developer from charging for copies of the software if they allow redistribution of the application and its source code afterwards. However, that’s not what “free software” refers to. The “free” in free software means “free as in freedom,” not “free as in beer.” The free software camp, led by Richard Stallman and the Free Software Foundation, focuses on the ethics and morals of using software that can be controlled and modified by the user. In other words, the free software camp focuses on user freedoms. (



[6]  On September 20, 2007, SFLC filed a lawsuit against Monsoon Multimedia, Inc. alleging that Monsoon had violated GPLv2 (-General Public License-it is a type of free software-) by including BusyBox code in their Monsoon Multimedia HAVA line of products without releasing BusyBox source code after its alteration. This is believed to be the first U.S. court case in which the complaint concerned a GPL violation. On October 30, 2007, an SFLC press release announced that the lawsuit had been settled with Monsoon agreeing to comply with the GPL and pay a sum of money to the plaintiffs.

[7] “